The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. He has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, Sedition Law in India, and FALQ posts on Proposals to Reform Pakistan’s Blasphemy Laws, Article 370 and the Removal of Jammu and Kashmir’s Special Status, India’s Government Response to COVID-19 (Novel Coronavirus) and Islamic Religious Authority and Pakistan’s Response to COVID-19. .
In this post, I explain some of the controversies surrounding Freedom of Religion laws and ordinances promulgated by several Indian states.
1. What is the background and controversy surrounding ‘love jihad’?
In India, several states have recently passed Freedom of Religion Act or “anti-conversion” laws that include controversial marriage provisions sometimes referred to as “Love jihad” laws. These are state-level statutes that have been enacted to regulate religious conversions. “Love jihad” refers to a trope or pejorative expression used mainly by right-wing Hindu Nationalist groups. One commentator notes that the term is “used to describe the conversion of a Hindu woman to Islam after she marries a Muslim man. It’s widely presumed that such conversions involve coercion or deceit and hence Hindu women ought to be protected from the danger of conversions.”
Government officials claim that these laws “will help prevent fraudulent religious conversions and aims to protect young women.” However, critics claim that these laws target Muslims and inter-faith couples and there have been many instances where interfaith couples have been harassed by militant activists and authorities for entering into consenting relationships and marriages. Activists have also criticized the laws for treating women in a “paternalistic way” which assumes “women need protection at the cost of their right to make reasoned decisions about changing faith or choosing a romantic partner.”
Conversion to marry may be in part incentivized by preexisting marriage laws and societal stigma associated with inter-faith marriages. In India, personal status matters, including marriage, are governed by distinct statutory and non-statutory religious laws that are applicable to members of various faiths including Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, and Zoroastrians. The Special Marriage Act, 1954, provides for a special form of marriage applicable to persons regardless of religion which can be used by inter-faith couples to conclude marriages. However, sections 5 -7 of the Act require advance notice and publication of such intended marriage by a district marriage officer and invites objections to the marriage. In some states such notices are sent to “addresses given in the couple’s identity documents, which is often their parents’ address.” These requirements prompt interfaith couples to convert and rely on other marriage laws that do not have such requirements. As a Reuters news report notes:
Since many face parental resistance, social ostracism and in extreme cases violence, many interfaith couples opt to wed under alternative marriage laws, lawyers said. “They convert to another faith to register quickly under say Hindu or Muslim marriage acts,” said Flavia Agnes, activist and founder of Majlis Legal Centre in Mumbai. That way, notices about their marriage plans do not reach their families, said Renu Mishra, executive director of women’s rights non-profit Association for Advocacy and Legal Initiative in Lucknow.
2. What are some of the features of the laws that have been enacted by States?
Currently four states, Uttar Pradesh, Himachal Pradesh, Uttarakhand and Madhya Pradesh, have enacted anti-conversion laws that include provisions that prevent “conversions” only for the purpose of marriage. In the media they have been commonly referred to as “love jihad” laws. The states of Haryana, Karnataka, Gujarat and Assam have also announced proposals to introduce similar legislation. All four laws are generally similar in terms of structure and have “common features” but do differ in respect to severity of punishment and certain other aspects.
The Bharatiya Janata Party (BJP) led government of Uttarakhand enacted the Uttarakhand Freedom of Religion Act, 2018 in April 2018 after proceedings of a 2017 High Court of Uttarakhand suggested that the state government pass an anti-conversion law to deal with “sham conversion only to facilitate the process of marriage.” One important difference between the Uttarakhand law and that of other previously enacted state anti-conversion laws is that it was the first state law that contained provisions on marriage and religious conversion.
Section 3 of this 2018 Act prohibits conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement, or marriage. This is subject to the controversial proviso that “if any person comes back to his ancestral religion, shall not be deemed conversion under this Act.” Punishment for contravention of section 3 is imprisonment ranging from one to five years and a fine. Harsher punishments of two to seven year imprisonment apply if the crime involves minors, women, or a person belonging to a Scheduled Caste or Scheduled Tribe. Another provision stipulates that marriages entered for the sole purpose of conversion to be declared null and void by a family court:
Any marriage which was done for the sole purpose of conversion by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared null and void by the Family Court or where Family Court is not established, the Court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage.
Any aggrieved person, his or her parents, or brother or sister, may file a complaint to the court of a conversion of religion on the ground that it contravenes the conditions specified in section 3. Section 7 sets out that complaints must be presented to the family court or where a family court is not established, the court having jurisdiction to try such case based on certain jurisdictional grounds. A person who desires to convert has to give a declaration, and the religious priest who performs the conversion must also give one month’s advance notice of such conversion to a district magistrate. Section 8(3) of the law requires that the district magistrate, after receiving the notices is required to “get an enquiry conducted through the police, with regard to real intention, purpose and cause of that proposed religion conversion.”
Accomplices to offences under the law may include persons who “aid or abet another person in committing the offence” or anyone who “counsels or procures any other person to commit the offence.” Institutions or organizations that violate provisions of the Act, and persons in charge of them, may also be punished and their registration “may be cancelled after giving reasonable opportunity of [a] hearing (Section 10).”
Further, section 13 of the Act inverts the evidentiary burden by shifting the burden of proof that a religious conversion was not effected through marriage to “the person so converted and, where such conversion has been facilitated by any person, on such other person.”
On August 30, 2019, the BJP government in Himachal Pradesh also passed the Himachal Pradesh Freedom of Religion Act, 2019 which came into force on December 18, 2020. Apart from some differences in terms of severity of punishments, the law is very similar to one enacted in Uttarakhand.
In October 2020, Yogi Adityanath, a Hindu nationalist monk and current chief Minister of the state of Uttar Pradesh, vowed in a political rally that “government is taking a decision that we will take tough measures to curb love jihad.” He referred to a recent order of the Allahabad High Court upholding its stance that “conversion just for the purpose of marriage is unacceptable.” On November 24, 2020, the state cabinet of Uttar Pradesh approved the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 and the Governor signed it on November 28, 2020. Some noted differences in this ordinance from previously enacted state laws is that it requires the converted person to send a post-conversion declaration within 60 days of the date of conversion to the district magistrate in the district in which the converted person ordinarily resides. In addition to the penalties for unlawful conversion, it also includes certain proviso clauses for additional crimes with more severe penalties.
On January 9, 2021, the Madhya Pradesh Freedom of Religion Ordinance, 2020 came into force. According to reports, once the state cabinet approved the ordinance the home minister Narottam Mishra said that “the law in Madhya Pradesh would be the most stringent in the country.” Though initially a Bill, the government decided to promulgate an ordinance as a bill couldn’t be tabled in the Provincial Assembly since the winter session had been deferred due to the COVID-19 pandemic. Typically a violation of section 3 of the Ordinance, the main prohibition that bars conversion by marriage, is subject to a prison term ranging from one to five years and a fine of at least 25,000 rupees (about US$343). The Ordinance also includes provisos similar to those enacted in Uttar Pradesh, but with an additional clause, clause 5, that stipulates that “whosoever intends to marry a person of any religion other than the religion professed by him and conceals his religion in such a manner that the other person whom he intends to marry, believes that his religion is truly the one professed” commits a punishable offence.
Unlike the other laws, this Ordinance also includes a provision on inheritance and maintenance of a child born of such marriage. A child born out of a marriage involving unlawful religious conversion shall be deemed legitimate. Under section 8, children born out of contravention of the ordinance will have the right to inheritance/succession according to the law governing inheritance of the father. Furthermore, the Ordinance provides that the woman and the children born out of such a marriage be entitled to maintenance.
At the end of February and beginning of March 2021, both the states of Uttar Pradesh and Madhya Pradesh passed bills in their respective state legislative assemblies seeking to replace the promulgated ordinances but they appear to be awaiting governor assent.
3. Have these laws been enforced?
In Uttarakhand, two years after the law was enacted, four persons were booked in a case for violating the notice requirements in the law. The case came to the awareness of authorities after the husband approached the Uttarakhand high court a month before the wedding seeking protection from the bride’s father who was against the marriage. A case was filed against the husband and the wife, the religious leader who performed the conversion of the wife, and the uncle of the husband.
According to news reports, Uttar Pradesh has been the most aggressive in enforcing its ordinance and concerns have been raised by activists on its misuse and harassment of women and minorities in the state. In late December 2020, in the first arrest made under the ordinance, a father, on the apparent prompting of the police, accused a person of befriending and coercing his daughter to convert to his religion and marry him. According to a news report, as of mid-January 2021, 91 persons had cases filed against them and 54 were arrested so far, an overwhelming majority of them Muslims, under the Ordinance. In Uttar Pradesh, according to reports, police have been “stopping interfaith marriages between consenting adults under the ordinance.” The BBC reported that “[w]eddings of interfaith couples, between consenting adults and even those involving parental approval, have been halted and Muslim grooms have been arrested.” There have also been examples of cases where the laws target already married couples. In one high profile reported case in Uttar Pradesh, members of a Hindu nationalist militant organization, Bajrang Dal, handed over a “22-year-old woman, her husband and his brother to the police, who then sent her to a government shelter and arrested the men.” She subsequently suffered a miscarriage while in custody at the shelter.
In Madhya Pradesh, the first arrest under the ordinance came when a woman alleged that a married Muslim man was pressuring her to convert to Islam and then get married. Since the law was introduced, there have been reportedly four cases involving religious conversion and marriage in the state.
4. Are there any legal challenges being considered by India’s courts?
According to news reports, a number of high courts are considering both the misuse and constitutionality of the recently issued laws and ordinances. For example, in November 2020, the Allahabad High Court overturned a previous holding that religious conversion for the sake of marriage is unacceptable, a holding which had been used to justify promulgating the ordinance by the Uttar Pradesh government. The Court has also been hearing a number of petitions including a case where an accused was arrested under the Uttar Pradesh Ordinance for attempting to establish a relationship with a complainant’s wife for the purpose of converting and attempting to marry her. However, the accused denied the charge and said the complaint was brought maliciously due to a payment dispute. The advocate representing the accused has challenged the constitutional validity of the ordinance. He reportedly argued that the central government had already adopted legislation on interfaith marriages, namely the Special Marriage Act. “Creating a communal and divisive legislation” at the state level is “not at all permissible in our constitutional scheme.” The High Court has stayed the accused’s arrest and has told police not to take any coercive action against him. In an order dated December 18, 2020, the Court observed that:
Article 25 [of India’s Constitution] provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part-III of the Constitution. There is no material before us that any force or coercive process is being adopted by the petitioner to convert wife of the informant. Victim is admittedly an adult who understands her well being. She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship.
In December and January, the Court also intervened against police harassment of interfaith couples including squashing a registered police complaint against a Muslim man. It observed in one petition that “[t]he court has repeatedly held that where the two individuals having attained the age of majority, are living together, nobody is entitled to interfere in their peaceful life.” A public interest litigation (PIL) petition has also been filed to challenge the constitutional validity of the ordinance and the Court has refused to dismiss the petitions on the plea of the government that the matter is under the consideration of the Supreme Court. One affidavit submitted by the State government defended the ordinance as necessary for the purposes of law and order and has also reportedly asserted that “community interest trumps an individual’s right to choose a life partner and the foremost duty of a secular state is to protect citizens from unlawful conversions.”
On Jan. 6, 2021, the Supreme Court of India agreed to hear petitions challenging the constitutionality of the ordinances promulgated by the state governments of Uttar Pradesh and Uttarakhand. The petitions were filed by an advocate and an NGO. An advocate on behalf of the parties “sought a stay of the provisions of the law” arguing that “people are being “lifted” by authorities in the middle of wedding ceremonies” and “[s]ome of the provisions of these laws are oppressive and horrible in nature and require prior consent of the government to marry which was ‘absolutely obnoxious.’” Though the Court initially asked the petitioners to approach the High Court of Allahabad, the Chief Justice of the Court agreed to hear the petitions and issued notices on the petitions to the state governments. However, the Court refused to stay the provisions holding that “[y]ou are asking for a relief which we cannot entertain under Article 32 of India’s Constitution. Whether provision is arbitrary or oppressive needs to be seen. This is the problem when you come directly to the Supreme Court.” Also, in late January 2021, the Supreme Court refused to admit a plea of the government of Utter Pradesh to transfer to the apex Court all petitions challenging the ordinance filed in the Allahabad High Court. On February 4th the Supreme Court said in a hearing that “it would be better to await the decisions of high courts” which are already examining the constitutional validity of these laws and ordinances.